FOIA Guide, 2004 Edition: Fees and Fee Waivers

Freedom of Information Act Guide, May 2004

Fees and Fee Waivers

Prior to the passage of the Freedom of Information Reform Act of 1986, (1) the
FOIA authorized agencies to assess reasonable charges only for document search
and duplication, and any assessable fees were to be waived or reduced if disclosure
of the requested information was found to be generally in the "public interest." (2) The
FOIA Reform Act brought significant changes to the way in which fees are now
assessed under the FOIA. A new fee structure was established, including a new
provision authorizing agencies to assess "review" charges when processing records
in response to a commercial-use request. (3) Specific fee limitations and restrictions
were set on the assessment of certain fees both in general as well as for certain
categories of requesters. (4) Additionally, the 1986 FOIA amendments replaced the
statutory fee waiver provision with a revised standard. (5) These revised fee and fee
waiver provisions were made effective as of mid-1987, but required implementing
agency regulations to become fully effective. (6)

Under the FOIA Reform Act, the Office of Management and Budget was
charged with the responsibility of promulgating, pursuant to notice and receipt of
public comment, a "uniform schedule of fees" (7) for individual agencies to follow when
promulgating their FOIA fee regulations. (8) On March 27, 1987, OMB issued its Uniform
Freedom of Information Act Fee Schedule and Guidelines [hereinafter OMB Fee
Guidelines]. (9) As mandated by the 1986 FOIA amendments, agencies are obligated
to conform their fee schedules to these guidelines. (10)

The FOIA Reform Act also required agencies to promulgate specific
"procedures and guidelines for determining when such fees should be waived or
reduced." (11) The Department of Justice, in accordance with its statutory
responsibility to encourage agency compliance with the FOIA, (12) developed new
governmentwide policy guidance on the waiver of FOIA fees, to replace its
previously issued guidance implementing the predecessor statutory fee waiver
standard. (13) In April 1987, to assist federal agencies in addressing fee waivers in
their revised FOIA fee regulations, the Department of Justice issued its New FOIA
Fee Waiver Policy Guidance to the heads of all federal departments and agencies,
which remains in effect. (14) While the Electronic Freedom of Information Act
Amendments of 1996 (15) made no direct changes to either the fee or fee waiver
provisions of the FOIA, (16) several of those amendments can have an effect on fee
matters. (17) More recently, the limited but significant amendment to the FOIA made
in 2002 by the Intelligence Authorization Act of 2003 (18) was confined in scope to
agencies within the intelligence community and has no direct effect on either the fee
or fee waiver provisions. (19) (For discussions of this amendment, see Introduction,
above, and Procedural Requirements, FOIA Requesters, above.)

Fees

As amended by the Freedom of Information Reform Act of 1986, the FOIA
provides for three levels of fees that may be assessed in response to FOIA requests
according to categories of FOIA requesters. (20) Within each fee level, the statute
provides for limitations on the types of fees that an agency may assess. (21) An
agency's determination of the appropriate fee level for an individual requester is
dependent upon the identity of the requester and the intended use of the
information sought. (22) The limitations placed on the types of fees that may be
assessed are not the statutory equivalent of fee "waivers"; (23) rather, they are best
characterized as statutory fee "limitations" in accordance with the structure of the
statute. (24) (For a discussion of fee waivers under the FOIA, see Fee Waivers, below.)

The following discussion summarizes the FOIA's fee provisions. The Uniform
Freedom of Information Act Fee Schedule and Guidelines [hereinafter OMB Fee
Guidelines], (25) which provide general principles for how agencies should set fee
schedules and make fee determinations, and include definitions of statutory fee
terms, discuss these provisions in greater, authoritative detail. Anyone with a FOIA
fee (as opposed to fee waiver) question should consult these guidelines in
conjunction with the appropriate agency's FOIA regulations for the records at issue.
Agency personnel should attempt to resolve such fee questions by consulting first
with their FOIA officers. Whenever fee questions cannot be resolved in that way,
agency FOIA officers should direct them to OMB's Office of Information and
Regulatory Affairs, Information Policy and Technology Branch, at (202) 395-3785.

The first level of fees provided for by the FOIA encompasses charges for
document search, review, and duplication, which are applicable "when records are
requested for commercial use." (26) The OMB Fee Guidelines define the term
"commercial use" as "a use or purpose that furthers the commercial, trade or profit
interests of the requester or the person on whose behalf the request is being
made," (27) which can include furthering those interests through litigation. (28)
Designation of a requester as a "commercial-use requester," therefore, will turn on
the use to which the requested information would be put, rather than on the identity
of the requester. (29) Agencies are encouraged to seek additional information or
clarification from the requester when the intended use is not clear from the request
itself. (30)

Charges for document "search" include all the time spent looking for
responsive material, including page-by-page or line-by-line identification of material
within documents. (31) Additionally, agencies may charge for search time even if they
fail to locate any records responsive to the request or even if the records located are
subsequently determined to be exempt from disclosure. (32) Searches for responsive
records should be done in the "most efficient and least expensive manner." (33) As
defined by the Electronic Freedom of Information Act Amendments of 1996, (34) the
term "search" means locating records or information either "manually or by
automated means" (35) and requires agencies to expend "reasonable efforts" in
electronic searches, if requested to do so by requesters willing to pay for that search
activity. (36)

The "review" costs which may be charged to commercial-use requesters
consist of the "direct costs incurred during the initial examination of a document for
the purposes of determining whether [it] must be disclosed [under the FOIA]." (37)
Review time thus includes processing the documents for disclosure, i.e., doing all
that is necessary to prepare them for release, (38) but it does not include time spent
resolving general legal or policy issues regarding the applicability of particular
exemptions or reviewing on appeal exemptions that already are applied. (39)

Under the 1986 FOIA amendments, "duplication" charges represent the
reasonable "direct costs" of making copies of documents. (40) Copies can take various
forms, including paper copies, microforms, or machine-readable documentation. (41)
As further required by the Electronic FOIA amendments, (42) which were enacted a
decade later, agencies must honor a requester's choice of form or format if the
record is "readily reproducible" in that form or format with "reasonable efforts" by the
agency. (43) For copies prepared by computer, such as printouts, agencies should
charge the actual costs of production of the printout. (44) Agencies should consult with
their technical support staff for assistance in determining their actual costs
associated with producing copies of various types of media. (45) In this regard, it is
standard practice that duplication charges are assessed only for those copies that
are released, not for any responsive record withheld in its entirety. (46) (For further
discussions of agency responsibilities when searching for or producing responsive
records under the Electronic FOIA amendments, see Procedural Requirements,
Searching for Records, above, and Procedural Requirements, Responding to FOIA
Requests, above.)

The second level of fees limits charges to document duplication costs only,
"when records are not sought for commercial use and the request is made by an
educational or noncommercial scientific institution, whose purpose is scholarly or
scientific research; or a representative of the news media." (47) FOIA requesters falling
into one or more of these three subcategories of requesters under the 1986 FOIA
amendments enjoy a complete "exemption" from the assessment of search and
review fees. (48) Their requests, like those made by any FOIA requester, still must
"reasonably describe" the records sought in order to not impose upon an agency "'an
unreasonably burdensome search.'" (49) (For a further discussion of this requirement,
see Procedural Requirements, Proper FOIA Requests, above.)

The OMB Fee Guidelines define "educational institution" to include various
categories of schools, as well as institutions of higher learning and vocational
education. (50) This definition is limited, however, by the requirement that the
educational institution be one "which operates a program or programs of scholarly
research." (51) To qualify for inclusion in this fee category, the request must serve a
scholarly research goal of the institution, not an individual goal. (52) The definition of a
"noncommercial scientific institution" refers to a "noncommercial" institution that is
"operated solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular product or industry." (53)

The definition of a "representative of the news media" refers to any person
actively gathering information of current interest to the public for an organization
that is organized and operated to publish or broadcast news to the general public. (54)
The Court of Appeals for the District of Columbia Circuit has elaborated upon this
definition, holding that "a representative of the news media is, in essence, a person
or entity that gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into a distinct work, and distributes
that work to an audience." (55) In reaching its decision, the D.C. Circuit relied in large
part on the legislative history of the 1986 FOIA amendments, (56) not finding the term
"representative of the news media . . . self-evident [in] what [it] covers." (57) During the
next decade, this category of FOIA requesters received scant additional attention by
the courts. (58)

In more recent years, however, perhaps partly due to the passage of the
Electronic FOIA amendments, (59) in conjunction with the ushering in of the
"Information Age," (60) there has been renewed interest in the question of what
constitutes a "representative of the news media" both in the FOIA context (61) and with
regard to non-FOIA matters as well. (62) Indeed, since 2000, there have been no fewer
than nine district court FOIA decisions on this issue that have arisen within the D.C.
Circuit, with eight involving the same plaintiff organization. In almost all of these
decisions, the court found that the organization before it was not such an entity. (63) In
addition to their reliance on the framework established by D.C. Circuit in National
Security Archive, these numerous decisions also relied on the implementing
regulations for the fee limitations/fee category portion of the statute. (64) Despite the
direction taken (and given) by the District Court for the District of Columbia on this
issue though, it is likely to remain a somewhat unsettled area of law until it can be
addressed by the D.C. Circuit, and other circuit courts as the issue develops, as
well. (65)

The D.C. Circuit did make clear at the time of its decision in National Security
Archive, however, that the term "representative of the news media" excludes
"'private librar[ies]' or 'private repositories'" of government records, or middlemen
such as "'information vendors [or] data brokers,'" who request records for use by
others. (66) This fee category, though, includes freelance journalists, when they can
demonstrate a solid basis for expecting the information disclosed to be published by
a news organization. (67)

It is well settled that a request from a representative of the news media that
supports a news-dissemination function "shall not be considered to be a request
that is for a commercial use." (68) A request from a representative of the news media
that does not support its news-dissemination function, however, should not be
accorded the favored fee treatment of this subcategory. (69)

Further, a request that is made to support an endeavor that merely makes the
information received available to the public (or others) is not sufficient to qualify it for
placement in this fee category. (70) Under the FOIA, once a requester has gathered
information of interest to the public it must, in some manner, "use its editorial skills
to turn the raw materials into a distinct work" in order to qualify as a representative
of the news media. (71) In the first case to construe this subcategory of requesters, the
requester's status was not in dispute but rather where the news organization
performed its media function. There the court held that even a foreign news service
may qualify as a representative of the news media. (72)

The third level of fees, which applies to all requesters who do not fall within
either of the preceding two fee levels, consists of reasonable charges for document
search and duplication, (73) as was provided for in the statutory FOIA fee provision that
was in place before the 1986 FOIA amendments.

When any FOIA request is submitted by someone on behalf of another person
-- for example, by an attorney on behalf of a client -- it is nevertheless the underlying
requester's identity and intended use that determines the level of fees. (74) When such
information is not readily apparent from the request itself, agencies should seek
clarification from the requester before assigning a requester to a specific requester
category. (75) Agencies also should be alert to the fact that a requester's category can
change over time. (76)

Additionally, the OMB Fee Guidelines authorize the recovery of the full costs
of providing all categories of requesters with "special services" that are not required
by the FOIA, such as when an agency complies with a request for certifying records
as true copies or mailing records by express mail. (77) In this regard, agencies should
strive to use the most efficient and least costly means of complying with a request. (78)
This may include the use of contractor services, as long as an agency does not
relinquish responsibilities it alone must perform, such as making fee waiver
determinations. (79)

The fee structure also includes restrictions both on the assessment of certain
fees (80) and on the authority of agencies to ask for an advance payment of a fee. (81) No
FOIA fee may be charged by an agency if the government's cost of collecting and
processing the fee is likely to equal or exceed the amount of the fee itself. (82) In
addition, except with respect to commercial-use requesters, agencies must provide
the first one hundred pages of duplication, as well as the first two hours of search
time, without cost to the requester. (83) These two provisions work together so that,
except with respect to commercial-use requesters, agencies should not begin to
assess fees until after they provide this amount of free search and duplication; the
assessable fee for any requester then must be greater than the agency's cost to
collect and process it in order for the fee actually to be charged. (84)

Agencies also may not require a requester to make an advance payment, i.e.,
payment before work is begun or continued on a request, unless the agency first
estimates that the assessable fee is likely to exceed $250, or unless the requester
has previously failed to pay a properly assessed fee in a timely manner (i.e., within
thirty days of the billing date). (85) This statutory restriction does not prevent agencies
from requiring payment before records which have been processed are released. (86)
Additionally, when an agency reasonably believes that a requester is attempting to
break a request into a series of requests for the purpose of avoiding the assessment
of fees, the agency may aggregate those requests and charge accordingly. (87) The
OMB Fee Guidelines should be consulted for additional guidance on aggregating
requests. (88)

The FOIA also provides that FOIA fees are superseded by "fees chargeable
under a statute specifically providing for setting the level of fees for particular types
of records." (89) Thus, when documents responsive to a FOIA request are maintained
for distribution by an agency according to a statutorily based fee schedule,
requesters should obtain the documents from that source and pay the applicable
fees in accordance with the fee schedule of that other statute. (90) This may at times
result in the assessment of fees that are higher than those that would otherwise be
chargeable under the FOIA, (91) but it ensures that such fees are properly borne by the
requester and not by the general public. (92) Given the increasing availability of low-cost and free government information through the Internet and other electronic
sources, it remains to be seen whether those agencies with such statutorily based
fee schedules -- and which do not receive appropriated funds to support their
record-distribution services, but are required by law to be self-sustaining -- will
continue to be viable sources of government information. (93) The superseding of FOIA
fees by the fee provisions of another statute raises a related question as to whether
an agency with a statutorily based fee schedule for particular types of records is
subject to the FOIA's fee waiver provision; although this question has been raised, it
has not yet been reached by an appellate court. (94)

The FOIA requires that requesters follow the agency's published rules for
making FOIA requests, including those pertaining to the payment of authorized
fees. (95) Requesters have been found not to have exhausted their ad-ministrative
remedies when fee requirements have not been met. (96) A requester's obligation to
comply with the agency's fee requirements does not cease after litigation has been
initiated under the FOIA. (97) (For a further discussion of the exhaustion requirement,
including "fee" exhaustion, see Litigation Considerations, Exhaustion of
Administrative Remedies, below.)

Further, the Act contains no provision for reimbursement of fees if the
requester is dissatisfied with the agency's response. (98) Nor does the FOIA provide
for penalties to be assessed against an agency or its administrators for delays in
refunding a requester's overpayment. (99)

Because the FOIA Reform Act was silent with respect to the standard and
scope of judicial review of FOIA fee issues, including a requester's fee category, (100)
the standard and scope of review should remain the same as that under the
predecessor statutory fee provision -- i.e., agency action should be upheld unless it is
found to be "arbitrary or capricious," in accordance with the Administrative
Procedure Act. (101) Perhaps due to this lack of statutory clarity, the appropriate
standard of review has yet to be clearly established in the decisions that have
considered this issue. (102) Despite statutory language that seems to specify to the
contrary, (103) the majority of courts that have reviewed fee issues under the FOIA have
applied a single review standard (i.e., de novo review) to both fee and fee waiver
matters, and they have done so with little or no discussion. (104) As for the scope of the
court's review, it should be limited to the administrative record before the agency at
the time of its decision, not some new record made before the reviewing court. (105)

In 1989, in an important case brought in the D.C. Circuit, (106) the government
argued that the defendant agency's interpretation of the 1986 fee amendments to
the FOIA, reflected by the agency's implementing regulations, was owed great
deference under the rule established by the Supreme Court in Chevron USA, Inc. v.
Natural Resources Defense Council. (107) The D.C. Circuit avoided addressing the
judicial review issue, however, by finding that with reference to the underlying fee
issue, "the statute, read in light of the legislative history . . . was] clear." (108) Thus,
some fifteen years later, the extent of judicial deference given to agency fee
regulations that are based upon the OMB Fee Guidelines remains unclear. (109)

Fee Waivers

The FOIA, as strengthened by the 1974 FOIA amendments, (110) authorized
waiver of fees when it was determined that such action was "in the public interest
because furnishing the information can be considered as primarily benefitting the
general public." (111) As the Court of Appeals for the District of Columbia Circuit had
emphasized, this provision "was enacted to ensure that the public would benefit
from any expenditure of public funds for the disclosure of public records." (112) In
January 1983, the Department of Justice issued fee waiver guidelines that set forth
specific criteria, developed in numerous court decisions, for federal agencies to
apply in determining whether the public interest warranted a waiver or reduction of
fees. (113)

The current fee waiver standard, which was established by the Freedom of
Information Reform Act of 1986, (114) more specifically defines the term "public interest"
by providing that fees should be waived or reduced "if disclosure of the information
is in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily
in the commercial interest of the requester." (115) In accordance with this provision, the
Department of Justice issued revised fee waiver policy guidance on April 2, 1987 --
which superseded its 1983 substantive fee waiver guidance, as well as that issued in
1986 (concerning institutions and record repositories) (116) -- and it advised agencies of
six analytical factors to be considered in applying this statutory fee waiver
standard. (117) These six factors were applied and implicitly approved by the Court of
Appeals for the Ninth Circuit in McClellan Ecological Seepage Situation v. Carlucci. (118)

The statutory fee waiver standard as amended in 1986 contains two basic
requirements -- the public interest requirement and the requirement that the
requester's commercial interest in the disclosure, if any, must be less than the public
interest in it. (119) Both of these statutory requirements must be satisfied by the
requester before properly assessable fees are waived or reduced under the
statutory standard. (120) In this regard, of course, it is the requester, not the
requester's representative or counsel, who must demonstrate his entitlement to a
fee waiver. (121) Requests for a waiver or reduction of fees must be considered on a
case-by-case basis (122) and should address both of the statutory requirements in
sufficient detail for the agency to make an informed decision as to whether it can
appropriately waive or reduce the fees in question. (123) Further, when a requester
fails to provide sufficient information for the agency to make that decision, the
agency may of course defer consideration of a fee waiver request in order to ask the
requester for all necessary supplemental or clarifying information. (124) As an
additional threshold matter, and just as with disclosures made under the FOIA, (125)
agencies analyzing fee waiver requests are not strictly bound by previous
administrative decisions. (126)

In order to determine whether the first fee waiver requirement has been met -- i.e., that disclosure of the requested information is in the public interest because it
is likely to contribute significantly to public understanding of government operations
or activities (127) -- agencies should consider the following four factors, in sequence: (128)

1. First, the subject matter of the requested records, in the context of the
request, must specifically concern identifiable "operations or activities of the
government." (129) As the D.C. Circuit specifically indicated in applying the predecessor
fee waiver standard, "the links between furnishing the requested information and
benefitting the general public" should not be "tenuous." (130) Although in most cases
records possessed by a federal agency will meet this threshold, the records must be
sought for their informative value with respect to specifically identified government
operations or activities; (131) a request for access to records for their intrinsic
informational content alone would not satisfy this threshold consideration. (132)

2. Second, in order for the disclosure to be "likely to contribute" to an
understanding of specific government operations or activities, the disclosable
portions of the requested information must be meaningfully informative in relation to
the subject matter of the request. (133) Requests for information that is already in the
public domain, either in a duplicative or a substantially identical form, may not
warrant a fee waiver because the disclosure would not be likely to contribute to an
understanding of government operations or activities when nothing new would be
added to the public's understanding. (134) Under existing case law, however, there is
no clear consensus yet as to what "is and what is not" considered information in the
public domain. (135)

3. Third, the disclosure must contribute to the understanding of the public at
large, as opposed to the individual understanding of the requester or a narrow
segment of interested persons. (136) In the past, courts have generally not defined the
"public-at-large" to include the prison population. (137) More recently, courts have
considered prisoners as the "public" within the meaning of the FOIA, (138) though the
issue has not yet been conclusively decided. Further, whether the "public-at-large"
encompasses only the population of the United States has not been clearly resolved
by the courts either. Only one case has directly raised this issue, one in which it was
held that disclosure to a foreign news syndicate that publishes only in Canada
satisfies the requirement that it contribute to "public understanding." (139)

As the proper focus must be on the benefit to be derived by the public, any
personal benefit to be derived by the requester, or the requester's particular
financial situation, are not factors entitling him or her to a fee waiver. (140) Indeed, it is
well settled that indigence alone, without a showing of a public benefit, is
insufficient to warrant a fee waiver. (141)

Additionally, agencies should evaluate the identity and qualifications of the
requester -- e.g., expertise in the subject area of the request and ability and
intention to disseminate the information to the public -- in order to determine
whether the public would benefit from disclosure to that requester. (142) Specialized
knowledge may be required to extract, synthesize, and effectively convey the
information to the public, and requesters certainly vary in their ability to do so. (143)
Although established representatives of the news media, as defined in the Uniform
Freedom of Information Act Fee Schedule and Guidelines [hereinafter OMB Fee
Guidelines], (144) should be readily able to meet this aspect of the statutory
requirement by showing their connection to a ready means of effective
dissemination, (145) other requesters should be required to describe with greater
substantiation their expertise in the subject area and their ability and intention to
disseminate the information. (146)

Some decisions under the former fee waiver standard suggested that
journalists should presumptively be granted fee waivers. (147) The Department of
Justice encourages agencies to give special weight to journalistic credentials under
this factor, (148) though the statute provides no specific presumption that journalistic
status alone is to be dispositive under the fee waiver standard overall and such a
presumption would run counter to the 1986 amendments that set forth a special fee
category for representatives of the news media. (149) (For a discussion of news media
requesters in the context of attorney fee awards under the FOIA, see Tax Analysts v.
United States Department of Justice (150) and Litigation Considerations, Attorney Fees
and Litigation Costs: Entitlement, below.)

Additionally, in this regard, while nonprofit organizations and public interest
groups often are capable of disseminating information, they do not by virtue of their
status presumptively qualify for fee waivers; rather they must, like any requester,
meet the statutory requirements for a full waiver of all fees. (151)

Further, the requirement that a requester demonstrate a contribution to the
understanding of the public at large is not satisfied simply because a fee waiver
request is made by a library or other record repository, or by a requester who
intends merely to disseminate the information to such an institution. (152) Requests
that make no showing of how the information would be disseminated, other than
through passively making it available to anyone who might seek access to it, do not
meet the burden of demonstrating with particularity that the information will be
communicated to the public. (153) These requests, like those of other requesters,
should be analyzed to identify a particular person or persons who actually will use
the requested information in scholarly or other analytic work and then disseminate it
to the general public. (154)

4. Fourth, the disclosure must contribute "significantly" to public
understanding of government operations or activities. (155) To warrant a waiver or
reduction of fees, the public's understanding of the subject matter in question, as
compared to the level of public understanding existing prior to the disclosure, must
be likely to be enhanced by the disclosure to a significant extent. (156) Such a
determination must be an objective one; agencies are not permitted to make
separate value judgments as to whether any information that would in fact
contribute significantly to public understanding of government operations or
activities is "important" enough to be made public. (157)

Once an agency determines that the "public interest" requirement for a fee
waiver has been met -- through its consideration of fee waiver factors one through
four -- the statutory standard's second requirement calls for the agency to determine
whether "disclosure of the information . . . is not primarily in the commercial interest
of the requester." (158) In order to decide whether this requirement has been satisfied,
agencies should consider the final two of the six fee waiver factors -- factors five and
six -- in sequence:

5. Accordingly, to apply the fifth factor an agency must next determine as a
threshold matter whether the request involves any commercial interest of the
requester which would be furthered by the disclosure. (159) A "commercial interest" is
one that furthers a commercial, trade, or profit interest as those terms are commonly
understood. (160) Information sought in furtherance of a tort claim for compensation or
retribution for the requester is not considered to involve a "commercial interest." (161)
However, not only profit-making corporations but also individuals or other
organizations may have a commercial interest to be furthered by the disclosure,
depending upon the circumstances involved. (162) Agencies may properly consider the
requester's identity and the circumstances surrounding the request and draw
reasonable inferences regarding the existence of a commercial interest. (163)

When a commercial interest is found to exist and that interest would be
furthered by the requested disclosure, an agency must assess the magnitude of
such interest in order subsequently to compare it to the "public interest" in
disclosure. (164) In assessing the magnitude of the commercial interest, the agency
should reasonably consider the extent to which the FOIA disclosure will serve the
requester's identified commercial interest. (165)

6. Lastly the agency must balance the requester's commercial interest
against the identified public interest in disclosure and determine which interest is
"primary." A fee waiver or reduction must be granted when the public interest in
disclosure is greater in magnitude than the requester's commercial interest. (166) Or as
one court phrased it when considering the balance to be struck under the
predecessor fee waiver standard: "[I]n simple terms, the public should not foot the
bill unless it will be the primary beneficiary of the [disclosure]." (167)

Although news gathering organizations ordinarily have a commercial interest
in obtaining information, agencies may generally presume that when a news media
requester has satisfied the "public interest" standard, that will be the primary
interest served. (168) On the other hand, disclosure to private repositories of
government records or data brokers may not be presumed to primarily serve the
public interest; rather, requests on behalf of such entities can more readily be
considered as primarily in their commercial interest, depending upon the nature of
the records and their relation to the exact circumstances of the enterprise. (169)

When agencies analyze fee waiver requests by considering these six factors,
they can rest assured that they have carried out their statutory obligation to
determine whether a waiver is in the public interest. (170) When an agency has relied
on factors unrelated to the public benefit standard to deny a fee waiver request,
however, courts have found an abuse of discretion. (171) Additionally, when only some
of the requested records satisfy the statutory test, a waiver should be granted for
those records. (172)

An analysis of the foregoing factors routinely requires an agency to first
assess the nature of the information likely to be released in response to an access
request, because the statutory standard speaks to whether "disclosure" of the
responsive information will significantly contribute to public understanding. (173) This
assessment necessarily focuses on the information that would be disclosed, (174) which
in turn logically requires an estimation of the applicability of any relevant FOIA
exemption(s).

In an atypical decision, the extent to which an agency should be required to
establish at the fee waiver determination stage the precise contours of its
anticipated withholdings was raised in Project on Military Procurement v.
Department of the Navy. (175) There the district court seemed to suggest that an
agency must defend an anticipated application of FOIA exemptions in the fee
waiver context with an index pursuant to the requirements of Vaughn v. Rosen. (176)
Such a requirement not only was unprecedented, it is also unworkable -- as it would
compel an agency to actually process responsive records at the threshold fee waiver
determination stage in order to compile the Vaughn Index; it would turn the normal,
longstanding procedure for responding to FOIA/fee waiver requests on its head. (177)
Until a fee waiver determination has been made and (if a full fee waiver is not
granted) the requester has agreed to pay all the assessable fees, the request is not
yet ripe for processing because there has been no compliance with the fee
requirements of the FOIA. (178) Because the decision on this issue in Project on Military
Procurement would yield impracticable results, (179) it should not be followed. (180)
Agencies should retain the general discretion, though, to consider the cost-effectiveness of their investment of administrative resources in their fee waiver
determinations. (181)

The FOIA does not explicitly reference any time period within which an
agency must resolve a fee waiver issue. (182) The extension of the statutory twenty-working day compliance requirement to include the resolution of fee waiver (and
fee) issues, however, is a logical application of the statutory twenty-day provision;
indeed, several courts, including the D.C. Circuit, have implicitly approved such
application. (183) (For a discussion of when the need to resolve a procedural issue,
including a fee-related matter, may extend the time period within which an agency
must determine whether to comply with a request, see Procedural Requirements,
Time Limits, above.)

Nor does the FOIA explicitly provide for administrative appeals of denials of
requests for fee waivers. Nevertheless, many agencies, either by regulation or by
practice, have appropriately considered appeals of such actions. (184) The Courts of
Appeals for the D.C. and Fifth Circuits have made it clear, moreover, that appellate
administrative exhaustion is required for any adverse determination, including fee
waiver denials. (185)

Prior to the 1986 FOIA amendments, the discretionary nature of the FOIA's fee
waiver provision led the majority of courts to conclude that the proper standard for
judicial review of an agency denial of a fee waiver is whether that decision was
arbitrary and capricious, (186) in accordance with the Administrative Procedure Act. (187)
This meant that a court could not "replace its own judgment for that of [an agency]
without first concluding that the [agency's] decision was completely unreasonable
and unfair." (188)

This standard was changed, however, when a specific judicial review
provision was included in the FOIA, (189) which provides for the review of agency fee
waiver denials according to a de novo standard. (190) Yet this provision also explicitly
provides that the scope of judicial review remains limited to the administrative
record established before the agency, (191) and thus it is crucial that the agency's fee
waiver denial letter create a comprehensive administrative record of all of the
reasons for the denial. (192)

A requester wishing to challenge an agency's denial of a fee waiver may seek
judicial review of the agency's decision. (193) In this regard, agencies should also be
aware that a challenge to an agency's fee waiver policy is not automatically
rendered moot when the agency reverses itself and grants the specific fee waiver
request; courts may still entertain challenges when they concern the legality of the
standards used and not the belated grant of a fee waiver. (194) For additional guidance
on any particular fee waiver issue, agency FOIA officers may contact OIP's FOIA
Counselor service, at (202) 514-3642.

21. Seeid.; see alsoEagle
v. United States Dep't of Commerce, No. C-01-20591, 2003 WL 21402534,
at *4 (N.D. Cal. Apr. 28, 2003) (observing that the statutory limitations
on the types of fees that may be charged do not per se disqualify a requester
from obtaining a fee waiver under 5 U.S.C. Â§ 552(a)(4)(A)(iii)).

30. See OMB Fee Guidelines, 52 Fed. Reg. at
10,018 (specifying that where the "use is not clear from the request .
. . agencies should seek additional clarification before assigning
the request to a specific category"); see alsoMcClellan,
835 F.2d at 1287 ("Legislative history and agency regulations imply that
an agency may seek additional information when establishing a requester's
category for fee assessment.").

36. Id. at Â§ 552(a)(3)(C); see alsoFOIA Update, Vol. XVIII, No. 1, at 6 (analyzing 1996 FOIA amendment
that requires agencies to "make reasonable efforts" to search for records
electronically); Department of Justice FOIA Regulations, 28 C.F.R. Â§ 16.11(b)(8)
(2004) (stating that process of searching includes using "reasonable efforts
to locate and retrieve information from records maintained in electronic
form or format"); OMB Fee Guidelines, 52 Fed. Reg. at 10,018, 10,019 (providing
that agencies should charge "the actual direct cost of providing [computer
searches]," but that for certain requester categories, the cost equivalent
of two hours of manual search is provided without charge).

37. 5 U.S.C. Â§ 552(a)(4)(A)(iv); see
alsoCarney v. United States Dep't of Justice, 19 F.3d 807, 814
n.2 (2d Cir. 1994) (noting that fee for document review is properly chargeable
to commercial requesters); OMB Fee Guidelines, 52 Fed. Reg. at 10,018 (clarifying
that records "withheld under an exemption which is subsequently determined
not to apply may be reviewed again to determine the applicability of other
exemptions not previously considered" and, further, that the "costs for
such a subsequent review would be properly assessable"). But seeAutoAlliance Int'l v. United States Customs Serv., No. 02-72369,
slip op. at 7-8 (E.D. Mich. July 31, 2003) (finding, in fact-specific case,
that where agency did not review all responsive documents during initial
review -- and charged no fee -- it effectively waived agency's ability to
charge commercial requester review fees for agency's "thorough review" conducted
at administrative appeal level inasmuch as statute limits such fees to "initial
examination" only).

38. SeeOSHA Data, 220 F.3d at 168 (concluding
in case of first impression that review fees include, in context of business-submitter
information, costs of mandatory predisclosure notification to companies
and evaluation of their responses by agency for purpose of determining applicability
of exemption to companies' submitted business information).

48. See 132 Cong. Rec. S14,298 (daily ed. Sept.
30, 1986) (statement of Sen. Leahy) (referring to requesters within the
second level of fees as receiving the benefits of "the most favorable fee
provision").

57. Seeid. at 1385; see also
132 Cong. Rec. H9464 (daily ed. Oct. 8, 1986) (statement of Rep. English)
(referring to "written explanatory materials that would have been included
in a committee report" and that acknowledge that "no definition of 'news
media' has been included in the [1986 FOIA amendments]").

58. SeeHosp. & Physician Publ'g,
No. 98-CV-4117, slip op. at 6 (S.D. Ill. June 22, 1999) (finding that the
requester qualified under the test of National Security Archive as
a "representative of the news media"); cf.Tax Analysts v. United
States Dep't of Justice, 965 F.2d 1092, 1095 (D.C. Cir. 1992) (noting
that in the context of attorney fees, plaintiff "is certainly a news organization").

61. Elec. Privacy Info. Ctr., 241 F. Supp.
2d at 14 n.7 (explaining that while plaintiff qualified as a news media
entity, "the Court is not convinced that a website is, by itself, sufficient
to qualify a FOIA requester as a 'representative of the news media,'" and
reasoning that virtually all organizations and many individuals in the metropolitan
area have Web sites, "but certainly all are not entitled to news media status
for fee determinations").

63. SeeJudicial Watch, Inc. v. Rossotti,
No. 01-1612, 2002 WL 535803, at *5 (D.D.C. Mar. 18, 2002) (finding persuasive
a prior district court decision on the same issue, adopting "the reasoning
and conclusions set forth" therein, and holding that the plaintiff organization
before it is not a representative of the news media), rev'd on other
grounds, 326 F.3d. 1309 (D.C. Cir. 2003); Judicial Watch, Inc. v.
United States Dep't of Justice, 185 F. Supp. 2d 54, 59 (D.D.C. 2002)
(concluding that the plaintiff organization did not qualify for media status
as it was not organized to broadcast or publish news and was "at best a
type of middleman or vendor of information that representatives of the news
media can utilize when appropriate"); Judicial Watch, Inc. v. United
States Dep't of Justice, No. 00-0745, slip op. at 15 (D.D.C. Feb. 12,
2001) (finding that the plaintiff organization is not "an entity organized
to publish or broadcast news," and stating that the organization's "vague
intention" to use the requested information is not specific enough "to establish
the necessary firm intent to publish that is required [in order] to qualify
as a representative of the news media"), partial summary judgment granted,
slip op. at 22 (D.D.C. Apr. 20, 2001) (repeating that plaintiff's "vague
intentions" to use requested information are insufficient to establish media
status); Judicial Watch, Inc. v. United States Dep't of Justice,
122 F. Supp. 2d 13, 21 (D.D.C. 2000) (same); Judicial Watch, Inc. v.
United States Dep't of Justice, 122 F. Supp. 2d 5, 12 (D.D.C. 2000)
(commenting that by its own admission the requester is not "'an entity that
is organized and operated to publish or broadcast news'" (quoting from definition
found at 28 C.F.R. Â§ 16.11(b)(6))); Judicial Watch, Inc. v. United States
Dep't of Justice, No. 99-2315, 2000 WL 33724693, at **3-4 (D.D.C. Aug.
17, 2000) (stating that letting reporters view documents collected from
government, faxing them to newspapers, and appearing on television or radio
does not qualify the requester for news media status; concluding that if
the requester's "vague intentions" to publish future reports "satisfied
FOIA's requirements, any entity could transform itself into a 'representative
of the news media' by including a single strategic sentence in its request").
But seeElec. Privacy Info. Ctr., 241 F. Supp. 2d at 9 (concluding
that the publication activities of a public interest research center --
which included both print and other media -- satisfied the definition of
"representative of the news media" under the agency's FOIA regulation);
Judicial Watch, Inc. v. United States Dep't of Justice, 133 F. Supp.
2d 52, 53-54 (D.D.C. 2000) (finding that the requester qualified as a representative
of the news media, but observing that the test for same that is set forth
in National Security Archive did not "apparently anticipate[] the
evolution of the Internet or the morphing of the 'news media' into its present
indistinct form," thereby suggesting that under National Security Archive
"arguably anyone with [a] website" could qualify for media status, and concluding
that "if such a result is intolerable . . . the remedy lies with Congress"),
appeal dismissed per curiam, No. 01-5019, 2001 WL 800022, at * 1
(D.C. Cir. June 13, 2001) (ruling that the "district court's order holding
that appellee is a representative of the news media for purposes of [the
FOIA] is not final in the traditional sense and does not meet the requirements
of the collateral order doctrine" for purposes of appeal).

64. See 28 C.F.R. Â§ 16.11; see also, e.g.,
Judicial Watch, 185 F. Supp. 2d at 58-59 (noting that agency, in
accordance with congressional directive, promulgated regulations that define
"representative of the news media"); Judicial Watch, 122 F. Supp.
2d at 20 (considering agency's regulatory definition of "representative
of the news media" in its analysis, and finding to be "perhaps of utmost
importance" the fact that the plaintiff organization "does not define itself
as an 'entity that is organized and operated to publish or broadcast news'"
(quoting from definition found at 28 C.F.R. Â§ 16.11(b)(6))); Judicial
Watch, 122 F. Supp. 2d at 12 (same); Judicial Watch, 2000 WL
33724693, at *3 (referring to and quoting from agency's promulgated definition
of "representative of the news media").

67. See OMB Fee Guidelines, 52 Fed. Reg. at
10,018. But seeHosp. & Physician Publ'g, No. 98-CV-4117,
slip op. at 6 (S.D. Ill. June 22, 1999) (in fact-specific case, ordering
defendant to apply news media status to plaintiff even though plaintiff
had not gathered news in past but expressed intention to do so in future).

68. OMB Fee Guidelines, 52 Fed. Reg. at 10,019; accordFOIA Update, Vol. VIII, No. 1, at 10; see alsoNat'l Sec.
Archive, 880 F.2d at 1387-88; 28 C.F.R. Â§ 16.11(b)(6) (Department
of Justice fee regulation defining "representative of the news media");
cf.Tax Analysts, 965 F.2d at 1096 (remarking that in the
context of attorney fees, "[i]f newspapers and television news shows had
to show the absence of commercial interests before they could win attorney[]
fees in FOIA cases, very few, if any, would ever prevail").

69. SeeNat'l Sec. Archive, 880 F.2d
at 1387 (stating that "there is no reason to treat an entity with news media
activities in its portfolio . . . as a 'representative of the news media'
when it requests documents . . . in aid of its nonjournalistic activities");
cf.Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 14 n.6 (stating
affirmatively that "not every organization with its own newsletter will
necessarily qualify for news media status" and that, to qualify, a newsletter
"must disseminate actual 'news' to the public, rather than solely self-promoting
articles about that organization").

70. SeeNat'l Sec. Archive, 880 F.2d
at 1386 (finding that "making information available to the public . . .
is insufficient to establish an entitlement to preferred [fee] status").

75. Seeid. at 10,013, 10,018; cf.Judicial Watch, 2004 WL 635180, at **7, 10 n.3 (finding it "unnecessary
to determine" requester's proper fee category where full fee waiver was
granted); Long v. ATF, 964 F. Supp. 494, 498, 499 (D.D.C. 1997) (upholding
agency's determination that "it did not 'find it necessary'" to make requester
category determination when full fee waiver was granted; rejecting plaintiff's
request for declaratory judgment as to requester category when no fee was
at issue, and finding that question was not ripe as to future requests).

80. Compare 132 Cong. Rec. H9464 (daily ed.
Oct. 8, 1986) (statement of Rep. English) (remarking that the restrictive
statutory provisions were designed "to prevent agencies from using procedural
ploys over fees to discourage requesters or delay the disclosure of information"),
withDep't of Justice v. Tax Analysts, 492 U.S. 136, 146 (1989)
(going so far, in the context of requested materials "that are readily available
elsewhere," as to pragmatically observe that "the fact that the FOIA allows
agencies to [properly] recoup the costs of processing requests from the
requester may discourage recourse to the FOIA," but nonetheless viewing
that as a preferable result in such instances).

89. 5 U.S.C. Â§ 552(a)(4)(A)(vi); see,
e.g., Oglesby v. United States Dep't of the Army, 79 F.3d 1172,
1177 (D.C. Cir. 1996) (stating that NARA's enabling statute, 44 U.S.C. Â§
2216 (2000), qualifies "as the genre of fee-setting provision not to be
'supersede[d]' under the FOIA's subsection (vi)" with regard to "the costs
of making . . . reproductions of materials transferred to [requester's]
custody"); see alsoFOIA Post, "NTIS: An Available Means
of Record Disclosure" (posted 8/30/02; supplemented 9/23/02) (describing
how the National Technical Information Service (NTIS) "occupies a special
status" with respect to making records available to the public, pursuant
to 1986 FOIA amendments, 5 U.S.C. Â§ 552(a)(4)(A)(vi)); National Technical
Information Act, 15 U.S.C. Â§Â§ 1151-57 (2000) (providing for dissemination
of technological, scientific, and engineering information to business and
industry); OMB Fee Guidelines, 52 Fed. Reg. at 10,017, 10,018.

97. SeePollack v. Dep't of Justice,
49 F.3d 115, 119-20 (4th Cir. 1995) (providing that commencement of FOIA
action does not relieve requester of obligation to pay for documents); Maydak
v. United States Dep't of Justice, 254 F. Supp. 2d 23, 50 (D.D.C. 2003)
(noting that plaintiff is still obligated to pay fee or seek waiver even
if agency's fee assessment is made after plaintiff files suit); Williams,
No. 01-1009, slip op. at 4 (D.D.C. Jan. 22, 2003) ("Commencement of a civil
action pursuant to FOIA does not relieve a requester of his obligation to
pay any required fees."); Goulding v. IRS, No. 97 C 5628, 1998 WL
325202, at *9 (N.D. Ill. June 8, 1998) (finding plaintiff's constructive
exhaustion did not relieve his obligation to pay authorized fees), summary
judgment granted, No. 97 C 5628 (N.D. Ill. July 30, 1998) (restating
that plaintiff's failure to comply with fee requirements is fatal to claim
against government); Trueblood, 943 F. Supp. at 68 (stating even
if request for payment not made until after litigation commences, that fact
does not relieve requester of obligation to pay reasonably assessed fees);
cf.Pub. Citizen, Inc. v. Dep't of Educ., 292 F. Supp. 2d
1, 5 (D.D.C. 2003) (disallowing assessment of fees after litigation ensued
where agency failed to inform requester that fees were in excess of amount
to which it agreed, failed to give notice that fees would exceed $250 as
required by regulation, and failed to address request for fee waiver); Judicial
Watch of Fla., Inc. v. United States Dep't of Justice, No. 01-0212,
slip op. at 3 (D.D.C. Oct. 19, 2001) (finding that plaintiff, through its
actions, including its ambiguous response to court's order to notify agency
of its intent with regard to payment of fees, "constructively abandoned
its FOIA request").

98. SeeStabasefski, 919 F. Supp. at
1573 (stating that FOIA does not provide for reimbursement of fees when
agency redacts portions of records that are released).

105. SeeCrain, No. 02-0341, slip op.
at 7 (D.D.C. Mar. 25, 2003) (saying that "this Court's review of fee categorization
is limited to the record that was before the agency at the time it made
its decision"); Judicial Watch, 122 F. Supp. 2d at 12 (stating that
scope of court's review is limited to administrative record); Judicial
Watch, 122 F. Supp. 2d at 20 (same); see alsoNTEU v. Griffin,
811 F.2d 644, 648 (D.C. Cir. 1987) (stating that the reasonableness of the
agency's position "depends on the information before it at the time of its
decision") (fee waiver case); cf.Camp v. Pitts, 411 U.S.
138, 142 (1973) ("In applying [the arbitrary and capricious] standard, the
focal point for judicial review should be the administrative record already
in existence, not some new record made initially in the reviewing court.")
(non-FOIA case); IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir.
1997) ("It is a widely accepted principle of administrative law that the
courts base their review of an agency's actions on the materials that were
before the agency at the time its decision was made.") (non-FOIA case).

107. 467 U.S. 837, 844 (1984) (emphasizing that where
the agency's statutory interpretation "fills a gap or defines a term in
a way that is reasonable in light of the legislature's revealed design,
[the court] give[s that] judgment 'controlling weight'") (non-FOIA case).

115. Id.; cf.Piper v. United States
Dep't of Justice, 294 F. Supp. 2d 16, 24 (D.D.C. 2003) (explaining,
in the context of Exemption 7(C), that disclosure "turn[s] on the nature
of the requested document and its relationship to 'the basic purpose of
[FOIA] to open agency action to the light of public scrutiny'" (quoting
United States Dep't of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 772 (1989)), reconsideration denied, No.
98-1161, 2004 WL 764587 (D.D.C. Mar. 26, 2004)).

123. See, e.g., Judicial Watch, 326
F.3d at 1312 (reiterating that requests for fee waivers "must be made with
reasonable specificity . . . and based on more than
conclusory allegations" (internal quotation marks and citations omitted));
Judicial Watch v. United States Dep't of Energy, No. 01-0981, 2004
WL 635180, at *8 (D.D.C. Mar. 31, 2004) (motion for reconsideration pending)
(same); McQueen, 264 F. Supp. at 525 (emphasizing that "[c]onclusory
statements on their face are insufficient" to prove entitlement to fee waiver);
Judicial Watch v. FBI, No. 00-0745, slip op. at 22 (D.D.C. Apr. 20,
2001) (denying for second time plaintiff's request for fee waiver and noting
that despite its earlier instruction to plaintiff that it could refile its
fee waiver request "if it develops additional, more concrete evidence" of
its qualification for waiver, plaintiff presented no such evidence in response
to government's filing); Judicial Watch, Inc. v. United States Dep't
of Justice, No. 00-0745, slip op. at 14-15 (D.D.C. Feb. 12, 2001) (finding
that plaintiff failed to provide any specific information in support of
its general statement that its organization's purpose was to "expose government
activities that are contrary to the law"), partial summary judgment granted
(D.D.C. Apr. 20, 2001); see alsoMcClellan, 835 F.2d at 1285
(stating that conclusory statements will not support fee waiver request);
Judicial Watch, Inc. v. United States Dep't of Justice, 133 F. Supp.
2d 52, 54 (D.D.C. 2000) (finding a requester's statements in support of
his fee waiver request to be "perfunctory assertions [that] were too 'ephemeral'
to satisfy the 'reasonable specificity' standard").

124. SeeMcClellan, 835 F.2d at 1287
(noting that "[t]he fee waiver statute nowhere suggests that an agency may
not ask for more information if the requester fails to provide enough");
Citizens, 241 F. Supp. 2d at 1366 (recognizing that the agency "is
entitled to ask for more information with regards to a fee waiver request,
where the information provided is not sufficient"); cf.Judicial
Watch, 326 F.3d at 1315 (concluding that initial request demonstrated
eligibility for fee waiver, thus effectively rejecting propriety of agency's
request for additional information).

126. See, e.g., Judicial Watch, Inc. v.
United States Dep't of Justice, No. 97-2089, slip op. at 14 (D.D.C.
July 14, 1998) (finding, in case at hand, that it was "wholly irrelevant"
that requester received fee waivers in other cases); Dollinger v. USPS,
No. 95-CV-6174T, slip op. at 7-8 (W.D.N.Y. Aug. 24, 1995) (concluding that
agency is not bound by previous decision on fee waiver for similar request
from same requester).

127. See, e.g., S.A. Ludsin & Co. v.
SBA, No. 97-7884, 1998 WL 642416, at *1 (2d Cir. Mar. 26, 1998) (reiterating
that first requirement not met when requester "merely paraphrased" fee waiver
provision); Oglesby v. United States Dep't of the Army, 920 F.2d
57, 66 n.11 (D.C. Cir. 1990) (conclusory statements insufficient to make
public interest showing); Ortloff v. United States Dep't of Justice,
No. 98-2819, slip op. at 17 (D.D.C. Mar. 22, 2002) (concluding that agency
was justified in denying request for fee waiver due to requester's failure
to demonstrate that release was in public interest), summary affirmance
granted, No. 02-5170 (D.C. Cir. Dec. 11, 2002); Judicial Watch,
122 F. Supp. 2d at 9 (finding that nonprofit group's "general description
of [its] organizational mission" failed to identify public interest to be
served by release of specific information requested); S.A. Ludsin &
Co. v. SBA, No. 96-5972, 1998 WL 355394, at *2 (E.D.N.Y. Apr. 2, 1998)
(observing that mere recitation of statute does not satisfy requester's
burden); Trueblood v. United States Dep't of the Treasury, 943 F.
Supp. 64, 69 (D.D.C. Oct. 30, 1996) (rejecting contention that public interest
requirement met by identifying personal benefit to requester); Sloman,
832 F. Supp. at 68 (finding that public interest requirement is not met
merely by quoting statutory standard); cf.S.A. Ludsin, 1998
WL 642416, at *1 (noting that requester's claim that disclosure to it would
"create[] revenue for the federal government" does not demonstrate that
disclosure "is in the public interest" for fee waiver purposes); Sierra
Club Legal Def. Fund v. Bibles, No. 93-35383, slip op. at 3-4 (9th Cir.
Aug. 29, 1994) (reasoning that disclosure to a group that is "in the public
interest" is not the same as saying that disclosure without fees is likely
to contribute to public understanding, and that the requester's status as
a public interest law firm does not automatically entitle it to a fee waiver
at taxpayer expense); NTEU v. Griffin, 811 F.2d 644, 647 (D.C. Cir.
1987) (observing under previous standard that requester seeking fee waiver
bears burden of identifying "public interest" involved); Judicial Watch,
Inc. v. United States Dep't of Justice, No. 01-0639, slip op. at 7 (D.D.C.
Mar. 31, 2003) (admitting that given the evidence on the record at the time
of the court's earlier decision -- including plaintiff's failure to provide
evidence "that further, free release of documents" was in the public interest
-- "the Court's previous decision improperly shifted the burden of establishing
eligibility for a FOIA fee waiver from Plaintiff to Defendant"). But
cf.Judicial Watch of Fla., Inc. v. United States Dep't of Justice,
No. 97-2869, slip op. at 4-5 (D.D.C. Aug. 25, 1998) (despite fact that disclosed
information was "not necessarily all new," finding public interest served
"by exposing government actions through litigation").

129. 5 U.S.C. Â§ 552(a)(4)(A)(iii); seeDollinger,
No. 95-CV-6174T, slip op. at 4 (W.D.N.Y. Aug. 24, 1995) (concluding that
"government" as used in fee waiver standard refers to federal government);
see alsoOglesby v. Dep't of Justice, No. 02-0603, slip op.
at 4 (D.D.C. Sept. 3, 2002) (finding that a requester's statement that records
pertaining to him would show "which [of his] activities were of interest
to the Government and what actions it took with respect to them" was conclusory
and did not identify "the link between identifiable government operations
and the information requested").

133. Seeid.; Carney v. United States
Dep't of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (stating that it is
relevant to consider subject matter of fee waiver request); Larson v.
CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (noting that character of
information is proper factor to consider); VoteHemp, 237 F. Supp.
2d at 61 (rejecting as "rank speculation" plaintiff's allegations that agency
had "ulterior motive" when it published interpretive rule); Citizens,
241 F. Supp. 2d at 1366 (reiterating that when applying fee waiver standard,
it is relevant to consider subject matter of request); Conklin v. United
States, 654 F. Supp. 1104, 1106 (D. Colo. 1987) (finding that mere allegations
of agency "oppression" did not justify fee waiver under predecessor fee
waiver standard); AFGE v. United States Dep't of Commerce, 632 F.
Supp. 1272, 1278 (D.D.C. 1986) (finding union's allegations of malfeasance
to be too ephemeral to warrant waiver of search fees without further evidence
that informative material will be found), aff'd on other grounds,
907 F.2d 203 (D.C. Cir. 1990); cf.NARA v. Favish, 124 S.
Ct. 1570, 1581 (2004) (holding, in the context of Exemption 7(C)'s closely
related public interest balancing test, that where the "public interest"
asserted is to show negligent or improper performance of agency officials'
duties, "the requester must establish more than a bare suspicion in order
to obtain disclosure"); Judicial Watch v. Rossotti, No. 01-2672,
2002 U.S. Dist. LEXIS 25213, at *21 (D. Md. Dec. 16, 2002) (finding, in
the context of Exemption 7(C)'s balancing test, that plaintiff's request
for the names of persons who submitted concerns to the IRS about plaintiff,
made to further plaintiff's investigation into the alleged 'connection between
volunteer tipsters and the retaliatory, political motivation for the unconstitutional
audit and investigation,'" did not rise to a FOIA "public interest"), aff'd
sub nom.Judicial Watch v. United States, 84 Fed. Appx. 335 (4th
Cir. Jan. 6, 2004), petition for cert. filed, 72 U.S.L.W. 3644 (U.S.
Apr. 5, 2004) (No. 03-1389).

134. SeeJudicial Watch, Inc., 2004
WL 980826, at *18 (emphasizing that plaintiff received "thousands of pages
of requested documents" but "has made no showing" to counter the government's
representations that the requested information "was already in the public
domain and thus not likely to contribute significantly to the public's understanding"
of a governmental activity; further finding "no basis to conclude that [plaintiff]
is entitled to a blanket fee waiver" where plaintiff did not take issue
with the reasonableness of the district court's finding of the public availability
of the documents already released; upholding the government's refusal to
process additional documents without payment of fees); Sierra Club Legal
Def. Fund, No. 93-35383, slip op. at 4 (9th Cir. Aug. 29, 1994) (determining
that plaintiff failed to explain "how its work would add anything to 'public
understanding'" where requested material already widely disseminated and
publicized); Carney, 19 F.3d at 815 (observing that "where records
are readily available from other sources . . . further disclosure by the
agency will not significantly contribute to public understanding"); McClellan,
835 F.2d at 1286 (recognizing new information has more potential to contribute
to public understanding); Judicial Watch, No. 01-0639, slip op. at
7-8 (D.D.C. Mar. 31, 2003) (finding that plaintiff failed to prove that
disclosable documents were "likely to contribute significantly" to the public
interest where "a vast majority of the responsive documents . . . were .
. . publicly available"); VoteHemp, 237 F. Supp. 2d at 60 (concluding
that plaintiff has not shown how requested documents would give public greater
understanding of agency policy concerning controlled substance than was
already available); Oglesby, No. 02-0603, slip op. at 4 (D.D.C. Sept.
3, 2002) (noting that many of requested records -- news articles, speeches,
interviews, and transcripts -- are already in public domain, and thus are
"not 'likely to contribute' to public understanding"); Ortloff, No.
98-2819, slip op. at 20 (D.D.C. Mar. 22, 2002) (stating that fee waiver
may be denied when information was previously released and is in public
domain); Judicial Watch, 2001 WL 1902811, at *10 (sustaining agency's
assessment of fees for duplication of court documents, press clippings,
and citizen letters where the material was "'easily accessible and available
to everyone else for a fee'" (quoting Durham v. United States Dep't of
Justice, 829 F. Supp. 428, 434-35 (D.D.C. 1993))); Durham, 829
F. Supp. at 434-35 (denying fee waiver for 2340 pages of public court records),
appeal dismissed for failure to timely file, No. 93-5354 (D.C. Cir.
Nov. 29, 1994); Sloman, 832 F. Supp. at 68 (stating that public's
understanding would not be enhanced to a significant extent where material
was previously released to other writers and "more important[ly]" was available
in agency's public reading room "where the public has access and has used
the information extensively"); cf.Tax Analysts v. United States
Dep't of Justice, 965 F.2d 1092, 1094-96 (D.C. Cir. 1992) (finding that
news organization was not entitled to attorney fees because, inter alia,
requested information was already in public domain). But seeCampbell
v. United States Dep't of Justice, 164 F.3d 20, 35 (D.C. Cir. 1998)
("declin[ing] to hold that the FBI cannot charge . . . any copying fees,"
but finding agency's fee waiver analysis "flawed" with regard to summaries
of public domain information, information that was repetitious but not asserted
to be duplicative, and nonsubstantive administrative information); Judicial
Watch, No. 97-2869, slip op. at 4 (D.D.C. Aug. 25, 1998) (while accepting
that information sought by requester was "not necessarily all new," nevertheless
concluding that it had "high potential" for contributing to public understanding).

136. SeeCarney, 19 F.3d at 814 (observing
that the relevant inquiry is "whether requester will disseminate the disclosed
records to a reasonably broad audience of persons interested in the subject");
Wagner v. United States Dep't of Justice, No. 86-5477, slip op. at
2 (D.C. Cir. Mar. 24, 1987) (reiterating that general public must benefit
from release); Judicial Watch, 185 F. Supp. 2d at 62 (stating that
requester must show that disclosure will contribute to understanding of
"reasonably broad audience of persons"); Judicial Watch, 122 F. Supp.
2d at 10 (same); Judicial Watch, 2000 WL 33724693, at *5 (same);
Crooker v. Dep't of the Army, 577 F. Supp. 1220, 1223 (D.D.C. 1984)
(rejecting fee waiver under previous standard for information of interest
to "a small segment of the scientific community," which would not "benefit
the public at large"), appeal dismissed as frivolous, No. 84-5089
(D.C. Cir. June 22, 1984); see alsoNTEU, 811 F.2d at 648
(rejecting "union's suggestion that its size insures that any benefit to
it amounts to a public benefit"); Citizens, 241 F. Supp. 2d at 1367
(holding that a requester's intent to release the information obtained "to
the media is not sufficient to demonstrate that disclosure would contribute
significantly to public understanding"); Fazzini v. United States Dep't
of Justice, No. 90-C-3303, 1991 WL 74649, at *5 (N.D. Ill. May 2, 1991)
(finding that requester cannot establish public benefit merely by alleging
he has "corresponded" with members of media and intends to share requested
information with them), summary affirmance granted, No. 91-2219 (7th
Cir. July 26, 1991).

138. SeeOrtloff, No. 98-2819, slip
op. at 21 (D.D.C. Mar. 22, 2002) (stressing that to qualify him for a fee
waiver, the requester's ability to disseminate information "to the general
public, or even to a limited segment of the public such as prisoners" must
be demonstrated); Van Fripp, No. 97-0159, slip op. at 8 (D.D.C. Mar.
16, 2000) (construing term "public" to include those who are incarcerated);
Linn v. United States Dep't of Justice, No. 92-1406, 1995 WL 631847,
at *14 (D.D.C. Aug. 22, 1995) (rejecting agency's position that dissemination
to prison population is not to public at large; statute makes no distinction
between incarcerated and nonincarcerated public).

139. Southam News v. INS, 674 F. Supp. 881,
892-93 (D.D.C. 1987). But cf.Reporters Comm., 489 U.S. at
773 (establishing that the core purpose of the FOIA is the people's right
"to know what their government is up to") (emphasis added); NLRB
v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (observing
that the basic purpose of the FOIA is "to hold the governors accountable
to the governed").

140. See, e.g., McClain v. United States
Dep't of Justice, 13 F.3d 220, 220-21 (7th Cir. 1993) (stating that
a fee waiver was inappropriate when the requester sought to serve a private
interest rather than "public understanding of operations or activities of
the government"); McQueen, 264 F. Supp. 2d at 525 (acknowledging
that plaintiff asserted more than one basis in support of fee waiver, but
concluding that his "primary purposes" served private interests and thus
disqualified him on that basis alone); DeCato, No. 00-3053, slip
op. at 8 (D.D.C. Jan. 2, 2003) (denying fee waiver where requester's stated
purpose was to pursue collateral attack on his conviction and sentence);
Mells v. IRS, No. 99-2030, 2002 U.S. Dist. LEXIS 24275, at **5-7
(D.D.C. Nov. 21, 2002) (noting that requester's reasons for fee waiver were
"overwhelmingly personal in nature" where he claimed that disclosure "would
yield exculpatory evidence pertaining to his criminal conviction"); Allnutt
v. United States Dep't of Justice, No. Y98-1722, 2000 U.S. Dist. LEXIS
4060, at **18-19 & n.9 (D. Md. Mar. 6, 2000) (magistrate's recommendation)
(observing that notwithstanding plaintiff's passionate statement, plaintiff
failed to establish that public would benefit from release of records pertaining
to his own bankruptcy case), adopted with minor modifications, 99
F. Supp. 2d 673 (D. Md. 2000), renewed motion for summary judgment granted,
2000 WL 852455 (D. Md. Oct. 23, 2000), aff'd sub nom.Allnutt
v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001); Crooker, 577 F.
Supp. at 1223-24 (finding that prison inmate's intent to write book about
brother's connection with dangerous toxin not considered benefit to public);
see alsoOrtloff, No. 98-2819, slip op. at 21 (D.D.C. Mar.
22, 2002) (stating questionably that cases are in conflict as to whether
public interest is served where requester seeks records to challenge conviction);
cf.Appleton v. FDA, 254 F. Supp. 2d 6, 10 n.5 (D.D.C. 2003)
(explaining that FOIA does not provide for expedited processing on basis
of age of requester). But seeJohnson v. United States Dep't of
Justice, No. 89-2842, slip op. at 3 (D.D.C. May 2, 1990) (stressing
that death-row prisoner seeking previously unreleased and possibly exculpatory
information was entitled to a partial fee waiver on the rationale that a
potential "miscarriage of justice . . . is a matter of great public
interest"), summary judgment granted, 758 F. Supp. 2, 5 (D.D.C. 1991)
(holding that, ultimately, FBI is not required to review records or else
forego FOIA exemption for possibly exculpatory information); see alsoPederson, 847 F. Supp. at 856 (concluding that requester's personal
interest in disclosure of requested information did not undercut fee waiver
request when requester established existence of concurrent public interest);
cf.Harper v. DOD, No. 93-35876, 1995 WL 392032, at *2 (9th
Cir. July 3, 1995) (explaining that prisoner presented no evidence that
requested technical reports might contain exculpatory material which would
entitle him to consideration for fee waiver).

142. CompareMcClain, 13 F.3d at 221
(stating that fee waiver must be assessed in light of identity and objectives
of requester), Larson, 843 F.2d at 1483 & n.5 (holding that inability
to disseminate information alone is sufficient basis for denying fee waiver
request; requester cannot rely on tenuous link to newspaper to establish
dissemination where administrative record failed to identify the recipient
news media outlet to which he intended to release information, his purpose
for seeking requested material, or his . . . contacts with any major newspaper
companies"), Citizens, 241 F. Supp. 2d at 1366 (stating that when
applying fee waiver standard, it is relevant to consider ability of requester
to disseminate information), Ortloff, No. 98-2819, slip op. at 21
(D.D.C. Mar. 22, 2002) (reiterating that inability to disseminate is fatal
to fee waiver request; expressing skepticism about viability of plaintiff's
claim of maintaining future Web site on which requested documents could
be posted), Van Fripp, No. 97-0159, slip op. at 11-12 (D.D.C. Mar.
16, 2000) (finding that "it is plaintiff's burden to disseminate the requested
information to the public and not, merely, to make it available"), Anderson,
No. 93-253, slip op. at 4 (W.D. Pa. May 11, 1995) (finding requester's inability
to disseminate fatal to fee waiver), andLarson v. CIA, 644
F. Supp. 15, 19 n.3 (D.D.C. 1987) (stating that "even if" it was appropriately
before the court, the court would reject a letter from a newspaper to the
requester indicating an interest in "anything you get" on the subject of
the request "as evidence of [the requester's] ability to disseminate" because
"such a rule would enable requesters to avoid fees simply by asserting an
intention to give the released documents to a newspaper"), aff'd,
843 F.2d 1481 (D.C. Cir. 1988), withJudicial Watch, 326 F.3d
at 1314 (granting fee waiver where requester did not specifically state
its intent to disseminate requested information but had presented multiple
ways in which it could convey information to public), Judicial Watch,
2004 WL 635180, at *9 (finding that requester's "litany of means by which
it [could] publicize[] information" without any specific representation
that it intended to do so in instant case satisfied dissemination requirement),
Eagle v. United States Dep't of Commerce, No. C-01-20591, 2003 WL
21402534, at **3, 5 (N.D. Cal. Apr. 28, 2003) (finding that educator-requester
made adequate showing of his ability to disseminate through his proposed
distribution of newsletter to Congress, through publication in academic
journals, and through publication on Web site), VoteHemp, 237 F.
Supp. 2d at 62 (finding requester's tri-part dissemination plan -- using
its Web site, issuing press releases, and communicating with federal and
state legislators -- sufficient to show that information would reach public),
andJudicial Watch, No. 98-2223, slip op. at 14-15 (D.D.C.
Sept. 25, 2000) (allowing a fee waiver and finding it reasonable to accept
"plaintiff's assurances that it will disseminate the disclosed . . . information
. . . to a substantial portion of the public"; stating that requester's
failure to identify recipient media outlets for information it receives
is not fatal to its claim that dissemination would be made "in venues widely
available to the public," including requester's proposal to place information
on its Web site).

143. SeeMcClellan, 835 F.2d at 1286
(observing that fee waiver request gave no indication of requesters' ability
to understand and process information nor whether they intended to actually
disseminate it); Eagle, 2003 WL 21402534, at *5 (granting a fee waiver
and emphasizing that the agency ignored the educational institution requester's
intent to review, evaluate, synthesize, and present "the otherwise raw information
into a more usable form"); Klamath Water Users Protective Ass'n,
No. 96-3077, slip op. at 47 (D. Or. June 19, 1997) (stating that requester
provided insufficient information to establish its ability to understand,
make use of, and disseminate requested information); S.A. Ludsin,
1997 U.S. Dist. LEXIS 8617, at *16 (finding requester's intention to make
raw appraisal data available on computer network, without analysis, to be
insufficient to meet public interest requirement); see alsoFOIA
Update, Vol. VIII, No. 1, at 7.

146. SeeFOIA Update, Vol. VIII, No.
1, at 8 & n.5; see also, e.g., Oglesby, 920 F.2d at 66
n.11 (explaining that requester's assertion that he was writer and had disseminated
in past, coupled with bare statement of public interest, was insufficient
to meet statutory standard); McClellan, 835 F.2d at 1286-87 (stating
agency may request additional information; finding twenty-three questions
not burdensome); Burriss v. CIA, 524 F. Supp. 448, 449 (M.D. Tenn.
1981) (holding that denial of plaintiff's fee waiver request "based upon
mere representation that he is a researcher who plans to write a book" was
not abuse of discretion). But seeCarney, 19 F.3d at 815 (noting
that while requester had only tentative book publication plans, "fact that
he is working on a related dissertation is sufficient evidence . . . that
his book will be completed"); cf.D.C. Technical Assistance Org.
v. HUD, 85 F. Supp. 2d 46, 49 (D.D.C. 2000) (suggesting that in "this
Information Age, technology has made it possible for almost anyone to fulfill
[the fee waiver dissemination] requirement").

150. 965 F.2d at 1095-96 (holding that litigant's
status as news organization does not render award of attorney fees automatic).

151. 5 U.S.C. Â§ 552(a)(4)(A)(iii); seeSierra
Club Legal Def. Fund, No. 93-35383, slip op. at 4 (9th Cir. Aug. 29,
1994) (explaining that status as public interest law firm does not entitle
requester to fee waiver); McClain, 13 F.3d at 221 (stating that status
as newspaper or nonprofit institution does not lead to "automatic" waiver
of fee); McClellan, 835 F.2d at 1284 (stating that legislative history
makes plain that "public interest" groups must satisfy statutory test);
VoteHemp, 237 F. Supp. 2d at 59 (explaining that nonprofit status
"does not relieve [the requester] of its obligation to satisfy the statutory
requirements for a fee waiver"); Judicial Watch v. United States Dep't
of Justice, No. 97-2089, slip op. at 13 (D.D.C. July 14, 1998) (emphasizing
that requester's status as public interest group does not entitle it to
fee waiver); Nat'l Wildlife Fed'n, No. 95-017-BU, slip op. at 3-4
(D. Mont. July 15, 1996) (finding that public interest groups must satisfy
the statutory test and that a requester does not qualify for a fee waiver
by "basically" relying on its status "as one of the nation's largest" conservation
organizations).

155. Cf.Favish, 124 S. Ct. at 1580-81
(emphasizing, in the Exemption 7(C) context, that the requester "must establish
a sufficient reason for the disclosure" by showing "that the public interest
sought to be advanced is a significant one" and that the information sought
is "likely to advance that interest"); FOIA Post, "Supreme Court
Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (advising
further on nexus requirement).

156. SeeFOIA Update, Vol. VIII, No.
1, at 8; Sierra Club Legal Def. Fund, No. 93-35383, slip op. at 4
(9th Cir. Aug. 29, 1994) (concluding that requester failed to explain how
disclosure to it "would add anything to 'public understanding' in light
of vast amount of material already disseminated and publicized"); Carney,
19 F.3d at 815 (observing when requested records readily available from
other sources, further disclosure will not significantly contribute to public
understanding); Oglesby, No. 02-0603, slip op. at 5 (D.D.C. Sept.
3, 2002) (observing that plaintiff failed to show how disclosure of records
of his own activities would demonstrate how public's understanding of government
operations would be significantly enhanced); Judicial Watch, 185
F. Supp. 2d at 62 (finding that plaintiff failed to describe with specificity
how disclosure of "these particular documents will 'enhance' public understanding
'to a significant extent'"); Judicial Watch, 122 F. Supp. 2d at 10
(explaining that plaintiff's failure to provide information relevant to
other fee waiver factors "makes it impossible to determine that disclosing
the requested information will significantly contribute to public understanding
of that operation or activity"); Judicial Watch, 2000 WL 33724693,
at *5 (stating that plaintiff's conclusory statements in support of a fee
waiver "do not discuss . . . if the disclosure would significantly enhance
public understanding"); D.C. Technical Assistance Org., 85 F. Supp.
2d at 49 (noting that while plaintiff demonstrated ability to disseminate
information, it failed to establish that disclosure would contribute significantly
to public's understanding of government activities or operations); Dollinger,
No. 95-CV-6174T, slip op. at 5-6 (W.D.N.Y. Aug. 24, 1995) (finding that
routine, generic information "lacks substantial informative value" and would
not significantly contribute to public understanding); Sloman, 832
F. Supp. at 68 (stating information previously released to other writers
and "more important[ly]" available in agency's reading room will not contribute
significantly to public understanding of operations of government); see
alsoJudicial Watch v. United States Dep't of Justice, No. 99-1883,
slip op. at 12 n.4 (D.D.C. Sept. 11, 2003) (finding no need to examine fee
waiver issue where plaintiff failed to exhaust administrative remedies on
that issue, yet nonetheless observing that "other courts in this district
have upheld denial of Plaintiff's similarly non-specific fee waiver" requests).
But seeLandmark, No. 97-1474, slip op. at 10 (D.D.C. Sept.
22, 1998) (finding "untenable" agency's position that possible prospective
release" of same material by congressional committee diminishes significance
of current release); Pederson, 847 F. Supp. at 855 (finding that
despite requesters' failure to specifically assert such significance, widespread
media attention referenced in appeal letter sufficient to demonstrate information's
significant contribution to public understanding).

163. SeeFOIA Update, Vol. VIII, No.
1, at 9; see alsoVoteHemp, 237 F. Supp. 2d at 65 ("A review
of plaintiff's website pages demonstrates that indeed it has a commercial
interest in the information it is seeking to obtain."); cf.Tax
Analysts, 965 F.2d at 1096 (clarifying that in the context of attorney
fees, the status of a requester as a news organization does not "render[]
irrelevant the news organization's other interests in the information").

170. SeeFOIA Update, Vol. VIII, No.
1, at 10; cf.Friends of the Coast Fork, 110 F.3d at 55 (emphasizing
that where agency's regulations provide for multifactor test, it is inappropriate
to rely on single factor); Or. Natural Desert Ass'n v. United States
Dep't of the Interior, 24 F. Supp. 2d 1088, 1095 (D. Or. 1998) (finding
that fee waiver denial must fail when agency did not fully follow its multifactor
regulation).

171. See, e.g., Goldberg, No. 85-1496,
slip op. at 3-5 (D.D.C. Apr. 29, 1986) (holding that an agency policy of
granting a waiver of search fees but not of duplication fees is "both irrational
and in violation of the statute"); Idaho Wildlife Fed'n v. United States
Forest Serv., 3 Gov't Disclosure Serv. (P-H) Â¶ 83,271, at 84,056
(D.D.C. July 21, 1983) (emphasizing that reliance on regulation that proscribes
granting of fee waiver when records are sought for litigation is abuse of
discretion because regulation is overbroad in that it ignores "public interest"
in certain litigation); Diamond v. FBI, 548 F. Supp. 1158, 1160 (S.D.N.Y.
1982) (maintaining that agency may not decline to waive fees based merely
upon perceived obligation to collect them); Eudey v. CIA, 478 F.
Supp. 1175, 1177 (D.D.C. 1979) (stating that agency may not consider quantity
of documents to be released).

172. See 28 C.F.R. Â§ 16.11(k)(4) ("Where
only some of the records to be released satisfy the requirements for a waiver
of fees, a waiver shall be granted for those records."); cf.Samuel
Gruber Educ. Project v. United States Dep't of Justice, 24 F. Supp.
2d 1, 2 (D.D.C. 1998) (upholding, without discussion, seventy-percent fee
waiver granted by agency). But seeSchrecker, 970 F. Supp.
at 50-51 (granting full fee waiver despite agency's determination that portion
of requested information already was in public domain); cf.Campbell,
164 F.3d at 35 (finding fault with analysis used by agency to award partial
fee waiver; remanding case for reconsideration but declining to hold that
agency may not charge any fee).

177. Cf.LaCedra v. Executive Office for
United States Attorneys, No. 99-0273, slip op. at 1 (D.D.C. Nov. 5,
2003) ("Unless the agency waives fees, the payment of assessed fees or the
administrative appeal from the denial of a fee waiver request is a jurisdictional
prerequisite to maintaining a FOIA lawsuit.").

178. See 5 U.S.C. Â§ 552(a)(3); see also,
e.g., Pollack v. Dep't of Justice, 49 F.3d 115, 120 (4th Cir.
1995) (finding when requester refused to commit to pay fees, agency "had
the authority to cease processing [his] request"); Vennes v. IRS,
No. 89-5136, slip op. at 2-3 (8th Cir. Oct. 13, 1989) (explaining agency
under no obligation to produce material until either requester agrees to
pay fee or fee waiver is approved); Casad, 2003 U.S. Dist. LEXIS
13007, at *18 (recognizing that where fee waiver is denied, no action by
agency is required until requester agrees to pay fee associated with request);
Woodfolk v. DEA, No. 97-0634, slip op. at 2 (D.D.C. Jan. 29, 2002)
(finding that agency had no obligation to produce records where requester
had neither paid fee nor applied for fee waiver); Daniel v. United States
Dep't of Justice, No. 99-2423, slip op. at 2 (D.D.C. Mar. 30, 2001)
(dismissing complaint for production of records where plaintiff had failed
to pay fee after fee waiver was denied), summary affirmance granted,
No. 01-5119, 2001 WL 1029156, at *1 (D.C. Cir. Aug 28, 2001); Krese v.
Executive Office of the President, No. 99-2415, 2000 U.S. Dist. LEXIS
14024, at *4 (D.D.C. Sept. 25, 2000) (reiterating that agency has no obligation
to produce records where requester has not paid fee); Irons v. FBI,
571 F. Supp. 1241, 1243 (D. Mass. 1983) (upholding regulation requiring
payment of fees or waiver of fees before FOIA request is deemed to have
been received); cf.Judicial Watch, No. 01-0639, slip op.
at 7-8 (D.D.C. Mar. 31, 2003) (recognizing that court's prior opinion "essentially
requiring [agency] to process Plaintiff's entire FOIA request for free without
requiring Plaintiff to meet its burden of proof" of entitlement to fee waiver
was improper); Johnston v. United States, No. 93-CV-5605, 1997 U.S.
Dist. LEXIS 597, at *4 (E.D. Pa. Jan. 27, 1997) (upholding agency's decision
to make availability of records contingent upon agreement to pay estimated
fees); FOIA Update, Vol. XIX, No. 3, at 2 (advising agencies how
to count requests closed for nonpayment of fees, for purposes of annual
FOIA reports). But seeJudicial Watch, 2004 WL 635180, at
*12 (ruling, where the agency granted a fee waiver for all documents other
than those to be withheld, that it "'invert[s] the burden of proof'" to
require plaintiff to show that agency's "contemplated withholdings" are
not proper (quoting Project on Military Procurement, 710 F. Supp.
at 367)); see alsoCarney, 19 F.3d at 815 (finding it not
proper to deny fee waiver request on basis that records may have been exempt;
fee waiver "should be evaluated on face of request"); Wilson v. CIA,
No. 89-3356, slip op. at 3-4 (D.D.C. Mar. 25, 1991) (stating that agency
may not deny fee waiver request based upon "likelihood" that information
will be withheld); cf.Landmark, No. 97-1474, slip op. at
7 (D.D.C. Sept. 22, 1998) (finding it proper to deny fee waiver based on
agency's preliminary determination of exempt status of the records "'only
if the request was for patently exempt documents'" (quoting Carney,
19 F.3d at 814)).

184. See, e.g., 28 C.F.R. Â§ 16.9(a) ("If
you are dissatisfied with [the agency's] response to your request, you may
appeal an adverse determination denying your request."); see also, e.g.,
id. at Â§ 16.6(c) (including in its listing of adverse determinations
"a denial of a request for a fee waiver").

185. SeePruitt v. Executive Office for
the United States Attorneys, No. 01-5453, 2002 WL 1364365, at *1 (D.C.
Cir. Apr. 19, 2002) (reiterating that judicial review is not appropriate
until requester either appeals fee waiver denial or pays assessed fee);
Voinche v. United States Dep't of the Air Force, 983 F.2d 667, 669
(5th Cir. 1993) (emphasizing that requester seeking fee waiver under FOIA
must exhaust administrative remedies before seeking judicial review); Oglesby,
920 F.2d at 66 & n.11, 71 ("Exhaustion does not occur until fees are
paid or an appeal is taken from the refusal to waive fees."); Pub. Citizen,
292 F. Supp. 2d at 4 ("A requester who disagrees with the denial of a waiver
must pursue administrative remedies."); Judicial Watch, No. 99-1883,
slip op. at 10-12 (D.D.C. Sept. 11, 2003) (concluding that although plaintiff
"may have" exhausted its administrative remedies as to other issues, it
had failed to administratively exhaust as to agency's denial of fee waiver,
so its claims related to fee waiver were not properly before court; rejecting
plaintiff's argument that its failure was irrelevant because of claimed
entitlement to full waiver of fees); Trulock v. United States Dep't of
Justice, 257 F. Supp. 2d 48, 52-53 (D.D.C. 2003) (reiterating that where
plaintiff has neither appealed fee waiver denial nor paid estimated fee,
court cannot address entitlement to fee waiver until plaintiff exhausts
administrative remedies with respect to fee issue); see alsoAFGE,
907 F.2d at 209 (declining consideration of fee waiver request when not
pursued during agency administrative proceeding); LaCedra, No. 99-0273,
slip op. at 1 (D.D.C. Nov. 5, 2003) (reiterating that payment of fees or
appeal from denial of a fee waiver is jurisdictional prerequisite to maintaining
lawsuit); Maydak v. United States Dep't of Justice, 254 F. Supp.
2d 23, 50 (D.D.C. 2003) (stating that payment or waiver of fees is jurisdictional
prerequisite to filing suit); 28 C.F.R. Â§ 16.9(c) (Department of Justice
regulation providing for administrative appeal exhaustion before court review);
cf.Campbell v. Unknown Power Superintendent of Flathead Irrigation
& Power Project, No. 91-35104, slip op. at 3 (9th Cir. Apr. 22,
1992) (explaining exhaustion requirement not imposed when agency ignored
fee waiver request). But seePub. Citizen, 292 F. Supp. 2d
at 4 (finding that requester constructively exhausted administrative remedies
where agency failed to respond to fee waiver request within twenty working
days); Mells, 2002 U.S. Dist. LEXIS 24275, at **5-7 (concluding,
in fact-specific case, that requester had constructively exhausted where
agency acknowledged receipt of appeal, did not substantively respond to
it, but rather contacted requester in order "to confirm his intentions to
appeal" given nature of correspondence exchanged with agency after receiving
fee waiver denial).

191. 5 U.S.C. Â§ 552(a)(4)(A)(vii); see
also, e.g., Judicial Watch, 326 F.3d at 1311 (stating that review
is "limited to the record before the agency"); Campbell, 164 F.3d
at 35 (same); Friends of the Coast Fork, 110 F.3d at 55 (stating
that court's consideration of fee waiver must be limited to administrative
record before agency); Carney, 19 F.3d at 814 (same); AFGE,
907 F.2d at 209 (same); Judicial Watch, 2004 WL 635180, at *7 (same);
Eagle, 2003 WL 21402534, at *4 (acknowledging that the agency ordinarily
is not permitted "to rely on justifications for its decision that were not
articulated during the administrative proceedings," but finding that here
the agency was "simply clarifying and explaining" its earlier position);
DeCato, No. 00-3053, slip op. at 7 (D.D.C. Jan. 2, 2003) (limiting
review of agency's denial of fee waiver request to record before agency);
Judicial Watch, 133 F. Supp. 2d at 53 & n.1 (disallowing consideration
of information not provided by plaintiff in administrative record); Judicial
Watch, 2000 WL 33724693, at *3 & n.1 (same); Anderson, No.
93-253, slip op. at 2 (W.D. Pa. May 11, 1995) (same; stating that new material
not reviewed by agency cannot be given any weight); Pederson, 847
F. Supp. at 854 (same).

192. See, e.g., Friends of the Coast Fork,
110 F.3d at 55 (reiterating that agency's letter "must be reasonably calculated
to put the requester on notice" as to reasons for the fee waiver denial);
Larson, 843 F.2d at 1483 (information not part of administrative
record may not be considered by district court when reviewing agency fee
waiver denial); NTEU, 811 F.2d at 648 (holding that court can consider
only information before agency at time of decision); Pub. Citizen,
292 F. Supp. 2d at 5 (criticizing agency for its failure to adjudicate fee
waiver by emphasizing that "this Court has no record upon which to evaluate
plaintiff's claims that it is entitled to a waiver"); S.A. Ludsin,
1997 U.S. Dist. LEXIS 8617, at *16 (stating that court cannot consider reasons
not provided by agency); Fitzgibbon, 724 F. Supp. at 1051 n.10 (finding
government's "post hoc rationales" offered in response to lawsuit untimely);
see alsoFOIA Update, Vol. VIII, No. 1, at 10; FOIA Update,
Vol. VI, No. 1, at 6.

193. See 5 U.S.C. Â§ 552(a)(4)(B); see
also, e.g., 28 C.F.R. Â§ 16.9(b) (requiring agency to inform requester
of right to judicial review of agency's adverse determination); id.
at Â§ 16.6(c) (providing that adverse determinations include "a denial
of a fee waiver request"); cf.Klein v. United States Patent &
Trademark Office, No. 97-5285, 1998 U.S. App. LEXIS 4720, at *2 (D.C.
Cir. Feb. 9, 1998) (holding that review of fee waiver denial may not be
sought in appellate court in first instance); Kansi v. United States
Dep't of Justice, 11 F. Supp. 2d 42, 43 (D.D.C. 1998) (refusing to consider
fee waiver request when it was not raised in Complaint or adequately justified
before agency).